Silly Accusations Against Judge Taylor

Judicial Watch, the group founded by legendary nutjob Larry Klayman whose goal appears to be to sue every human being in the western hemisphere by the year 2050, is making a big deal out of an alleged conflict of interest by Judge Taylor. Naturally, STACLU is jumping on board, as is much of the media. It's all a bunch of nonsense. Here's the accusation:

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a "recent grant" of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision.

"This potential conflict of interest merits serious investigation," said Judicial Watch President Tom Fitton. "If Judge Diggs Taylor failed to disclose this link to a plaintiff in a case before her court, it would certainly call into question her judgment."

But Judicial Watch links to the code of conduct for Federal judges and there is nothing in those rules that says this is a conflict of interest. If that was defined as a conflict of interest for a Federal judge, judges would be recusing themselves constantly in cases involving advocacy groups. Judges do not come to the bench without a history of involvement with causes they believe in, nor are they required to give them up when they do take the bench.

If you made every Federal judge recuse themselves because they are involved with an organization that gave a grant, it would be impossible to run the courts. Innumerable judges have ties not only to groups like the ACLU but to the Federalist Society, the Alliance Defense Fund, and other conservative groups as well. A conflict of interest occurs when a judge has a stake in the outcome, when they or someone they're close to would benefit if they ruled one way or the other.

But advocacy groups take part in a huge range of lawsuits, as plaintiffs, as legal counsel, or as amici. The fact that a judge is a member of a group with ties to an advocacy group does not mean there's a conflict of interest, nor does it mean they should recuse themselves, any more than Scalia or Thomas should recuse themselves if a case involves a fellow Federalist Society member, or than Roberts or Alito should recuse themselves in any case involving groups they've worked with in the past, or from cases involving the DOJ that they used to work for, or from cases involving the President that appointed them.

Orin Kerr is right in what he wrote at Volokh earlier:

This judgment seems pretty sensible to me, but I do take objection what some will take as the broader gist of the story as reported in the Times and elsewhere. To the extent that the story raises the question of whether Judge Taylor was biased in favor of the ACLU because of some kind of financial relationship with it, that suggestion strikes me as totally bogus. I don't think Judge Taylor wrote a good opinion, but I think it's very far-fetched and rather insulting to her to suggest that her opinion was influenced by some kind of actual conflict of interest.

This accusation is so weak that even Stephen Gillers, who seems to detect ethical problems by judges in the most ridiculous situations (this is the guy who claimed that Scalia had commited a "dubious ethical choice" by teaching a continuing education course at a Federalist Society convention), doesn't think it's a big deal.

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Hell, Scalia doesn't recuse himself from cases in which he rules on the interests of one of his golf buddies. And legally, he probably don't have to. If THAT's not a conflict of interest, then the fact that your firm did business with one of the parties in the past in your career is pretty amazingly weak.

This from people who claim that the revolving door of indusrtry to political leadership overseeing that industry to lobbying for that industry isn't a conflict of interest.

Think Progress shows how small of a connection the Judge has to the ACLU.

Anyone for some duck hunting?

Fore!

This is precisely what Greenwald was talking about. The media is falling over itself to quibble about the ruling rather than address directly the fact that a federal court has found that the president has been committing felonies. Why is that?

By Ginger Yellow (not verified) on 24 Aug 2006 #permalink

Ginger Yellow wrote:

This is precisely what Greenwald was talking about. The media is falling over itself to quibble about the ruling rather than address directly the fact that a federal court has found that the president has been committing felonies. Why is that?

I think these are entirely different situations. He was complaining about people focusing on analyzing the validity of the opinion rather than just cheering the conclusion. This is entirely different, this is focusing on silly accusations against the judge's character rather than focusing on analyzing the validity of the opinion.

Well, as his follow-up posts and Orin Kerr's retractions demonstrate, he was complaining about people focusing on analysing the validity of the opinion who hadn't even looked at the procedural history or who even knew the rules of civil procedure. I can't stress enough that Greenwald's very first post on the subject criticised the judge's reasoning. I myself can't begin to understand why she didn't cite Hamdan. But he went on to stress, and explain why, the ruling would stand up anyway and that this had huge implications for our constitution and the presidency. The Post, and Kerr, prefer to harangue the judge. Balkin, for his part, complains that the judge doesn't address arguments that the DoJ didn't present.

By Ginger Yellow (not verified) on 24 Aug 2006 #permalink